USA v. Ivan Rea

• Decision Date: 02 September 2010
• Docket Number: Nos. 09-2652, 09-3011.,s. 09-2652, 09-3011.
• Citation: 621 F.3d 595
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ivan REA, a/k/a Oscar Camacho-Diaz, a/k/a Michoacan, a/k/a Alex, and Jose L. Medina, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

621 F.3d 595

UNITED STATES of America, Plaintiff-Appellee,

v.Ivan REA, a/k/a Oscar Camacho-Diaz, a/k/a Michoacan, a/k/a Alex, and Jose L. Medina, Defendants-Appellants.

Nos. 09-2652, 09-3011.

United States Court of Appeals,Seventh Circuit.

Argued May 26, 2010.

Decided Sept. 2, 2010.

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Bradley Blackington, argued, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Vilija Bilaisis, argued, Ludington, MI, Hannah V. Garst, argued, Chicago, IL, for Defendants-Appellants.

Ivan Rea, Oklahoma City, OK, Pro se.

Before RIPPLE, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

This is the consolidated appeal of drug dealers Ivan Rea and Jose Medina. A jury convicted both Defendants and they now appeal various aspects of their convictions and sentences.

I. Background

Ivan Rea is also known by a variety of nicknames including “Michoacan.” He received forty pounds of methamphetamine every two weeks in Indianapolis, which he purchased from sources in Denver. He directed others to help him cut, weigh, package, transport, and distribute the meth. Rea also fronted the methamphetamine to others for resale and used his drug runners to collect the money owed him. Medina was a distributor who sold methamphetamine for Rea.

On September 24, 2008, a grand jury returned a three-count indictment charging Rea and Medina with conspiracy to distribute in excess of 500 grams of a mixture containing methamphetamine, in violation of 21 U.S.C. § 846; charging Rea with conducting a continuous criminal enterprise (“CCE”), in violation of 21 U.S.C. §§ 848(a) and (b); and charging Rea with being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5)(A).

Following a joint trial in March 2009, the jury found Rea and Medina guilty of conspiracy, and found Rea guilty of engaging in a CCE. In June 2009, the district court sentenced Rea to two concurrent life sentences, one each for conspiracy and for engaging in a CCE, and entered a $100 special assessment for each count. In July 2009, the district court sentenced Medina to 350 months' imprisonment, 5 years' supervised release, and entered a $100 special assessment.

II. Analysis

A. Ivan Rea

Rea presents several arguments on appeal. First, Rea argues that his convictions and sentences for conspiracy and engaging in a CCE violate the Double Jeopardy Clause, requiring that one of his convictions be vacated. Second, Rea argues that the government's evidence was insufficient to support a guilty verdict for participating in a CCE. Third, he argues that the district court abused its discretion by admitting hearsay testimony that identified Rea as the source of methamphetamine. Finally, he argues that the district court committed plain error in calculating his base offense level for sentencing purposes by adding two levels for possession of a firearm during the commission of the offense. We take each argument in turn.

1. Double Jeopardy Violation

Rea argues that the district court's imposition of two concurrent life sentences for conspiracy and for engaging in a CCE violates the Fifth Amendment's Double Jeopardy Clause because the convictions and sentences were based on the same underlying conduct-an agreement. Because Rea did not raise his double jeopardy defense before the district court, we review the district court's judgment for plain error. Fed.R.Crim.P. 52(b); United States v. Crowder, 588 F.3d 929, 938 (7th Cir.2009).

The Double Jeopardy Clause prohibits multiple punishments for the same offense. Missouri v. Hunter, 459 U.S. 359, 365-66, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). To determine whether the same act or conduct constitutes one offense or two, we must determine “whether each [statutory] provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The offenses are considered to be the same if the first offense is a lesser included offense of the second. United States v. Loniello, 610 F.3d 488, 491 (7th Cir.2010) (“If one statute has an element missing from the second, but all of the second's elements are in the first, then the second is a lesser included offense of the first.”). Where two charged offenses are determined to be the same, the Double Jeopardy Clause limits conviction and sentencing to only one of the charged offenses, unless Congress intended otherwise. Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); United States v. Pao Xiong, 595 F.3d 697, 698 (7th Cir.2010).

The Supreme Court in Rutledge v. United States held that conspiracy to distribute controlled substances is a lesser included offense of engaging in a CCE. 517 U.S. at 300, 307, 116 S.Ct. 1241. The Court noted:

[B]ecause the plain meaning of the phrase “in concert” signifies mutual agreement in a common plan or enterprise, we hold that this element of the CCE offense requires proof of a conspiracy that would also violate § 846. Because § 846 does not require proof of any fact that is not also a part of the CCE offense, a straightforward application of the Blockburger test leads to the conclusion that conspiracy as defined in § 846 does not define a different offense from the CCE offense defined in § 848. Furthermore, since the latter offense is the more serious of the two, and because only one of its elements is necessary to prove a § 846 conspiracy, it is appropriate to characterize § 846 as a lesser included offense of § 848.

Id. at 300, 116 S.Ct. 1241. In Rutledge, as in the case at hand, the sentences imposed for conspiracy and for conducting a CCE were concurrent life sentences, and each carried a special assessment. Id. at 294, 116 S.Ct. 1241. Finding that Congress did not intend punishments for both offenses, even if only because each conviction carried with it a special assessment, see id. at 301, 116 S.Ct. 1241 (distinguishing concurrent sentences as multiple punishments when special assessments are imposed for each offense), the Court vacated one of the underlying convictions and the concurrent sentence based on it, id. at 307, 116 S.Ct. 1241.

Here, Rea argues that under Rutledge the conspiracy alleged in his indictment is a lesser included offense of the CCE and that, along with a special assessment for each, his concurrent sentences thus amount to cumulative punishment not authorized by Congress. Because the government concedes Rea's argument, and we agree, we vacate Rea's conviction and sentence for conspiracy. We do not remand Rea's case, however, because, as noted below, we affirm Rea's CCE conviction and sentence.

2. Sufficiency of the Evidence

Rea contends that the evidence against him was insufficient to support his CCE conviction. Rea faces an uphill battle in bringing this challenge on appeal. United States v. Morris, 576 F.3d 661, 665-66 (7th Cir.2009). On a challenge to the sufficiency of the evidence, we ordinarily review the evidence in the light most favorable to the government, and we will overturn the conviction only if there is no evidence upon which a rational juror could have found the defendant guilty. United States v. Hampton, 585 F.3d 1033, 1040 (7th Cir.2009). In conducting this analysis, we do not reweigh the evidence or evaluate the credibility of the witnesses. United States v. Khattab, 536 F.3d 765, 769 (7th Cir.2008).

The government argues that Rea faces a heightened standard today because he waived his appellate challenge by failing to raise this issue in a Rule 29 motion for judgment of acquittal at the district court. See Fed.R.Crim.P. 29; United States v. Hickok, 77 F.3d 992, 1002 (7th Cir.1996). When a defendant waives his challenge, we will only reverse his conviction if we find a “manifest miscarriage of justice” under the plain error standard of review. United States v. Hensley, 574 F.3d 384, 390 (7th Cir.2009). “Manifest miscarriage of justice is perhaps the most demanding standard of appellate review.” United States v. Turner, 551 F.3d 657, 662 (7th Cir.2008) ( quoting United States v. Taylor, 226 F.3d 593, 597-98 (7th Cir.2000)). In other words, “reversal is warranted only if the record is devoid of evidence pointing to guilt, or if the evidence on a key element was so tenuous that a conviction would be shocking.” Hensley, 574 F.3d at 390-91 ( quoting United States v. Irby, 558 F.3d 651, 653 (7th Cir.2009)) (internal quotation marks omitted).

At the close of trial testimony, Medina's counsel made a verbal motion for judgment of acquittal. This motion was followed by Rea's counsel saying, “We do not believe on behalf of Mr. Rea we have a good-faith basis to make a recommendation with respect to 29B. However, we would like to make a similar presentation with respect to evidence.” (Tr. at 734.) Rea argues that his counsel's subsequent remarks in effect adopted Medina's motion.

Rea is incorrect in several respects. We begin by stating the obvious-Rea's counsel specifically stated there was no basis to make a Rule 29 motion. Now, however, Rea attempts to pin his sufficiency of the evidence argument to his counsel's comment about making a presentation “with respect to evidence.” But as the trial transcript makes abundantly clear, Rea's counsel's reference to “evidence” referred to Rea's decision whether or not to testify, not to the sufficiency of the evidence argument. The district court subsequently addressed Rea's decision during colloquy and Rea ultimately announced his decision not to testify. (Tr. at 735-36.) To construe Rea's counsel's comments as somehow preserving a sufficiency of the evidence argument for appeal is inaccurate at best and an attempt to mislead this court at worst. We also find no reason why Rea should benefit from Medina's counsel's Rule 29 motion-especially in light of Rea's admission, through his attorney, that he did not have a good-faith basis for bringing a Rule 29 motion. We therefore find...